If it walks like a duck and quacks like a duck, it’s probably a duck.
That’s the message of the EEOC’s Final Rule on the ADA Amendments, effective May 24, 2011.
It took four town hall meetings, over 600 public comments, and almost two and a half years to issue the Final Rule. Isn’t it much more complicated than this?
The short answer is yes and no. (How’s that for a “lawyer” response?)
I’ll start with complicated and then move on to simple.
The New Regulations Are Complicated
Some would argue that the Final Rule creates more issues than it solves. For example, it addresses in detail the “regarded as” prong to the three-part definition of the term disability. Consideration of coverage under the first prong (actual) or second prong (record of) of the definition of a disability is necessary only in situations where the individual requires a reasonable accommodation. In all other cases that do not involve reasonable accommodations, “the ‘regarded as’ prong should be the primary means of establishing coverage [under the] ADA.”
But what if the employer argues that a reasonable accommodation is not required and the employee disagrees? Which prong do you fall under? And what does “primary” really mean?
The rule also eliminates the use of the term “qualified individual with a disability” and now refers to an “individual with a disability” and “qualified individual” as separate terms. However, an individual must still establish that he or she is “qualified” for the job in question. So what’s the real difference?
The New Regulations Are Simple
Undoubtedly, lawyers and courts will have many words over the new regulations. But the overall intent of the new regulations is fairly simple: Congress (and the EEOC’s Final Rule) has expanded the scope of coverage under the ADA. In fact, the legislative history states that lawyers and courts should “spend less time and energy on the minutia of an individual’s impairment, and more time on the merits of the case.” Employers should focus more on reasonable accommodations. If an employee is “regarded as” disabled, the employee is covered.
In other words, if it looks like a duck and walks like a duck, treat it like a duck!
How’s that for avoiding minutia?